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Kesavananda: case and its Legacy

GS Paper 2

 Syllabus: Structure, Organization and Functioning of the Executive and the Judiciary

 

Source: IE

 Context: Fifty years ago, on April 24, 1973, the SC delivered its landmark judgment in Kesavananda Bharati vs the State of Kerala.

Kesavananda Bharati vs State of Kerala
What was the case about? The extent of Parliament’s power to amend the Constitution was the backdrop of the tussle between the executive and the judiciary in the first two decades of the republic.

 

 

By the 1st Amendment of 1951, the 9th Schedule was inserted – any law placed in this Schedule could not be questioned in any court of law.

 

 

In  Shankari Prasad v. Union of India (1951), the SC upheld the 1st Amendment and held that Parliament’s power to amend any part of the Constitution was limitless.

 

 

In Sajjan Singh v. State of Rajasthan (1965), the SC asked whether the Parliament could take away even the critical fundamental rights

 

 

In Golaknath v State of Punjab (1967), the SC ruled that Parliament cannot amend fundamental rights.

 

 

The 24th Amendment 1971 – amended Articles 13, 368 – provided Parliament with the powers to amend any provision of the Constitution and insulated such amendments from Judicial Review.

Verdict A 13-judge Constitution Bench of the SC (with a 7-6 majority) redefined the relationship between Parliament and the Constitution by ruling that the “basic structure” of the Constitution is inviolable, and cannot be amended by Parliament.

 

 

While the Parliament had vast powers to amend the Constitution, certain parts (“basic structure”) are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.

What is the basic structure doctrine? The origins of the basic structure doctrine are found in the German Constitution.

 

 

In India, while parliamentary democracy, fundamental rights, judicial review, and secularism are all held by courts as basic structures, the list is not exhaustive (decided by the court on a case-by-case basis).

 

 

The basic structure doctrine has formed the bedrock of judicial review of all laws passed by the Indian Parliament.

A scrutiny of the application of the doctrine over the past 50 years:

  • Although the highest court has invoked “basic structure” sparingly, it has mostly struck down amendments where judicial powers have been curtailed.
  • Since 1973, the Constitution has been amended more than 60 times. In at least 16 cases, the SC has evaluated constitutional amendments with regard to the basic structure doctrine.
  • 9/16 constitutional amendments have been upheld by the SC. 6 of these cases relate to reservations [OBC, EWS and reservations in promotions].

 

Constitutional amendment entirely stuck down by the SC:

  • The Constitution (99th Amendment) Act 2014, which established the National Judicial Appointments Commission (NJAC) was struck down in 2015 on the grounds that it threatened “judicial independence” – a basic feature of the Constitution.
  • NJAC would have been responsible for the appointment and transfer of judges, replacing the current Collegium system.

 

Constitutional amendments partially stuck down by the SC:

  • In 6 instances, including the Kesavananda ruling itself, the SC has “partially struck down” a constitutional amendment.
  • In all these cases, the provision that was struck down related to the denial of judicial review.

 

6 instances when SC partially stuck down an amendment: Out of 6, 5 were during the Indira Gandhi era.

  • Kesavananda Bharati vs State of Kerala (1973): While the court upheld the land ceiling laws that were challenged, it struck down the following portion of the 25th Amendment (1972)
    • If any law is passed to give effect to the DPSP it cannot be deemed to be void on the ground that it abridged rights under Articles 14, 19 or 31.
  • Indira Gandhi v Raj Narain (1975): The SC struck down The Constitution (39th Amendment) Act 1975, which barred it from hearing a challenge to the election of President, PM, VP, and Speaker of Lok Sabha.
  • Minerva Mills Ltd vs Union Of India (1980): The SC struck down a clause inserted in Article 368, which said there shall be no limitation on the constituent power of Parliament.
  • P Sambamurthy v State of Andhra Pradesh (1986): The SC struck down a portion of the 32nd Amendment (1973), which constituted an Administrative Tribunal for Andhra Pradesh, taking away the jurisdiction of the High Court.
  • L Chandra Kumar v Union of India (1997): The top court struck down a portion of the 42nd Amendment 1976, which set up administrative tribunals excluding judicial review by High Courts.
  • Kihoto Hollohan vs Zachillhu And Others (1992): The SC upheld The Constitution (52nd Amendment) Act that introduced the 10th Schedule/anti-defection law in the Constitution.
    • However, the only portion of the amendment that was struck down was that the decisions of the Speaker relating to disqualification cannot be judicially reviewed.

 

Significance of the verdict:

  • The ruling (by the narrowest possible margin of 7-6) has rejected majoritarian impulses and underlined the foundations of a modern democracy saving both the constitution and constitutionalism.
  • However, it marked a definite assertion of the judiciary against the majoritarian Parliament leading to Parliamentary sovereignty vs Judicial supremacy, Judicial activism vs overreach
  • A highly controversial pluralist judicial creation has been accepted now by legislatures, the executive, and the people of India.

 

Insta Links:

Admonishments that endanger the Constitution

 

Mains Links: 

“Parliament’s power to amend the constitution is limited power and it cannot be enlarged into absolute power”. In light of this statement, explain whether parliament under Article 368 of the constitution can destroy the basic structure of the constitution by expanding its amending power. (UPSC 2019)

 

Prelims Links: (UPSC 2020)

Consider the following statements:

  1. The Constitution of India defines its ‘basic structure’ in terms of federalism, secularism, fundamental rights and democracy.
  2. The Constitution of India provides for ‘judicial review’ to safeguard the citizens’ liberties and to preserve the ideals on which the Constitution is based.

 

Which of the statements given above is/are correct?

  1. 1 only
  2. 2 only
  3. Both 1 and 2
  4. Neither 1 nor 2

 

Ans: 4